Mediating Disputes Ensures Confidentiality and Resolution

Contributed by Lynne S. Bassis, Esq.

BACKGROUND: You are excited about your new business venture. You met someone who you knew would make a great business partner. Each of you brings different experience to the table and together you have what it takes to have a thriving business. After 3 months of initial planning meetings at Starbucks, you hired an attorney who advised you about the law and incorporated your business. You are bringing in business and are happy about this.

THE PROBLEM: You and your partner have weekly meetings to create and prioritize a checklist of things to do, and decide on who will do what. Both you and your partner agree that having deadlines for assignments will reinforce accountability and is a good plan. The first two months went great. But in the third month you noticed that your partner never seemed to be finished with his tasks on time. He seemed to have a lot of excuses. You wonder if your partner has had a change of heart about the business, or is angry at you, or feels that the workload isn’t being split evenly. You also wonder if this might have something to do with your partner’s divorce just being finalized. You’re committed to the business, but want to work with a partner who is equally committed. Your cousin suggested mediation and you wonder what this is and if mediation would be a good idea.

WHAT IS MEDIATION? Mediation is an opportunity to sit down with a professional facilitator, called a “mediator” or “neutral,” who can help you and your partner identify issues, communicate viewpoints, manage emotions, generate solutions, and come to an agreement on how you will work together in the future. The mediator is impartial and makes no judgements about who is right or wrong.

MEDIATION IS CONFIDENTIAL: For most businesses confidentiality is paramount. Business people do not want their dealings or disputes in the public domain. With limited exceptions, what is discussed in mediation cannot be used down the road if a lawsuit ensues. The mediation process affords the opportunity for sensitive issues to be discussed outside of the public eye.

TIMING OF THE MEDIATION: It’s a good idea to schedule a mediation as early as possible before negative feelings and anger have damaged the business relationship and trust is waning. Mediation can be useful at any time there is disruption in the workplace.

COST: The cost of a mediator varies greatly and there is no one size fits all. Fees usually depend on the mediator’s years in practice and professional standing in the community.

SELECTING A MEDIATOR: Choosing the right mediator for your case is important. A personal telephone call to the mediator will yield a lot of information. Researching a mediator’s background and personality on the internet is recommended. Obtaining a referral from an attorney or other person who knows the mediator personally or by reputation is another source. Most mediators have testimonials on their website that offer useful information.

WHAT ARE THE STAGES IN THE MEDIATION PROCESS?

Mediator’s Opening Statement

Who’s Who (introductions)

Sets the tone of the mediation

Sets ground rules

Explains process (Joint Session and Caucuses)

Obtains signatures on the Confidentiality Agreement

Participants’ Initial Statement

Each participant describes the situation as he or she sees it and identifies the goals to be accomplished in the mediation, while the other participants listen.

Mediator clarifies, restates, questions etc. to highlight important information and as a precursor to later stages.

Setting an Agenda

Mediator compiles a list of items that participants highlight which need attention.

Surfacing the Conflict

Surfacing the REAL conflict

Promoting communication

Coaching in the negotiations > identifying solutions to agenda items

Agreement

Participants reach oral agreement.

Agreement is drafted.

Closing

MEDIATION OUTCOME: As a result of the mediation, the partners learned that they had a misunderstanding regarding the setting of deadlines and priorities. One thought that the deadline was a guideline only and that although there was mutual desire to meet the deadline, the flow of work might not make the possible. The other thought that the deadline dates were absolute. The partners realized that their anger and fear that the other one was no longer committed to the business had caused a rift and both partners where thinking of dissolving the partnership. The mediation allowed clarification of not only the deadlines, but of many other aspects of the business, The partners agreed to a more realistic meeting schedule, finding that weekly meetings did not leave sufficient time for the completion of most tasks. The partners got back on track with each other and realized that they shared mutual business philosophy and goals. The written agreement helped them memorialize the terms of agreement for the future.

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The information on this site is not, nor is it intended to be, legal advice. You should formally consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Please be advised, however, contacting us, submitting a case to us, and/or discussing your case with us does NOT create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.